Why a $1.6B billion law suit for non-payment of royalties is not likely to affect Spotify’s March IPO

Spotify recently filed confidential plans for an initial public offering to take place on March 31 on the New York Stock Exchange were thrown a curve when it was sued by Wixen Music Publishingfor damages of at least $1.6 billion and injunctive relief.

Wixen accused the Swedish company of streaming thousands of its their artists songs without compensation. Wixen’s 2,000 members include Tom Petty, Neil Young, the Doors and the Beachboys, which Variety says represent between 1% and 5% of music streamed.

Spotify has an estimated valuation of about $19 billion and $3 billion in annual revenues. As of fall 2017, the leading streaming platform had accumulated 140 million regular users, including 60 million paid subscribers. Initially, its shares will trade privately, allowing some early investors to cash out.

It would be the first major company to carry out a direct listing, an unconventional way to pursue an IPO. Spotify plans to simply list its shares on the NYSE and let them trade, and, for now at least, will not raise additional capital.

Silver Lining?

Horacio Gutierrez, Spotify’s General Counsel, was recruited from Microsoft in 2016 where he learned the licensing business under the stewardship of Marshall Phelps, an IP licensing pioneer. Before establishing MS’s leading patent licensing program, Phelps helped generate more than $1billion in annual royalties for IBM.

My money is on Gutierrez to settle this suit in a timely manner and for Spotify to move on, uniquely positioned for success.

“Forcing Spotify to step up and enter into an agreement with a major publisher that is fairer to its artists may expose the streaming site to similar deals, but it will also solidify its reputation as the content leader amid streaming services,” an industry observer told IP CloseUp. “It will likely set a precedent for others industry deals of this nature and make it more difficult for Pandora, YouTube, and others to continue paying token royalties.”

Wixen’s lawsuit, reports Rolling Stone, follows several other lawsuits that have focused on Spotify’s alleged failure to pay [appropriate] royalties on a song’s musical composition. Recorded songs have two separate copyrights: The sound recording, which is typically owned by the record label, and the musical composition (also known as the “mechanical license”), which is owned by the songwriter and publisher.

In 2017, Spotify settled a class action brought by Cracker front-man and artists rights activist, David Lowery and another artist, for $43 million.

Proposed Changes

In the meantime, the Music Modernization Act, a bill introduced in the United States House of Representatives on December 21, would impact copyright holders suing over mechanical reproduction after Jan. 1, 2018, which helps explain the New Year’s Eve lawsuit filing.

“We are very disappointed that these services will retroactively get a free pass for actions that were previously illegal unless we actually file suit before Jan. 1, 2018,” said Wixen president Randall Wixen in a statement to The Hollywood Reporter. “Neither we nor our clients are interested in becoming litigants, but we have been faced with a choice of forfeiting rights and damages, or taking action at this time.”

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About Bruce Berman

Bruce is a long-time IP observer, adviser and editor, who is in close close contact with the leading owners and influencers. He tracks latest trends and developments, and monitors transactions, strategy and performance.

Since 1988 Bruce has been working with IP holders, managers and lawyers, as well as investors, to convey value to the right audiences. In 2016 he founded the Center for IP Understanding, an independent non-profit, www.understandingip.org.

Bruce is responsible for five books, including the best-seller "From Ideas to Assets." He has written The Intangible Investor column for IAM Magazine since 2003. For his full bio, visit www.brodyberman.com or click below.